Constitutional Rights

By Pankaj | October 20, 2024

What is the purpose of drafting a constitution of India?

The Indian Constitution provides a comprehensive framework to guide and govern the country, and guarantees the basic human rights to every citizen of India. The right to freedom, the right against exploitation, the right to freedom of religion, cultural and educational rights, and right to constitutional remedies are some of the constitutional provisions ensuring human rights which if infringed, can be challenged.

How the citizens are affected by the constitution?

The constitution has a main feature that governs and ensures an impartial judiciary, independent of the legislature and the executive. The administration of the country is guided by the constitution and any such action of the government can be challenged through the constitution in the court of law. The Supreme Court of India is the highest court of the country and acts as guardian of the Constitution and serves as the final court of appeal.

Directive Principles of State Policy

What is directive principles of state policy?

Directive Principles of State Policy (DPSP) are non-Justiciable Rights, which means that they cannot be enforced through a Court of Law and it merely imposes a moral obligation on the states.

What is the objective of including directive principles of state policy?

Directive Principles of State Policy are list of articles which are mentioned in the Part 4 of the Indian constitution from articles 36 to 51. Each state in the country has to direct its policy in such a manner as to secure the right of all men and women to an adequate means of livelihood, equal pay for equal work and within limits of its economic capacity and development, to make effective provision for securing the right to work, education and to public assistance in the event of unemployment, old age, sickness and disablement or other cases of undeserved want.

Can an individual can sue the state government or the central government for not following the directive principles of state policy?

The answer to this question is “No.” The provisions contained in this Part are not be enforceable by any court, but the principles therein laid down are yet fundamental in the governance of the country and it is the duty of the government to apply these principles in making laws.

Whether the Supreme Court or High Court can issue command if a state government does not follow the directive principles?

As per Constitutional Principles, a Court is not authorized to issue command to the state when the Directive Principles are not followed because the Directive Principle is a yardstick in the hand of people to check the performance of government and not available for the courts. But the Court can take suo moto(on its own) action when the matter is of utmost public importance and affect the large interest of the public.

Fundamental duties

What is the concept of fundamental duty?

Article 51(A) talks about these Fundamental Duties and has 11 fundamental duties that are expected to be performed by the citizens. Fundamental duties are part of the Directive Principles hence they are not justiciable if there is a violation of such duties.

Can an individual enforce these duties?

No. Fundamental duties are not legally enforced through courts but fundamental rights are enforceable through the Supreme Court under Article 32 of the Constitution. But the fundamental duties and the directive principles of the state policy provided in Part IV of the Indian Constitution are considered by the Courts in India while understanding the fundamental rights or any restrictions that are imposed on such rights.

What are those fundamental duties provided under article 51(A)?

There are 11 fundamental duties curated under article 51(A):

1. We need to follow our Constitution and should respect our national flag and national anthem
2. Should follow the ideals of the freedom struggle.
3. Protect the sovereignty and integrity of our nation.
4. Protect our nation and provide national services when required.
5. Should have the spirit of a common brotherhood.
6. Preserve the culture of our country.
7. Protect the environment of our country.
8. Generate scientific rationale for every thought.
9. To protect public property.
10. Strive for excellence.
11. It is the duty of every parent to send their children between 6-14 years to school

What is the relation between fundamental rights and fundamental duties?

Fundamental Rights are the legal obligation of the state to respect, whereas the Directive Principle of State Policy is the moral obligation of the state government to follow. Many of the Directive Principles have become enforceable by becoming a law subsequently and Directive Principle of State Policy widens the scope of Fundamental Rights.

Importance of Directive Principle of State Policy for an Indian citizen?

The objective is to better the social and economic conditions of society so that people can live a good life. Knowledge of these principles helps a citizen to keep a check on the government. A citizen can use Directive Principle of State Policy as a measure of the performance of the government and can identify the scope where it lacks.

Emergency provisions

What is an emergency?

Framers of the Indian Constitution believed that in an hour of grave emergency under the Constitution of India when the security and stability of the country or any part thereof is threatened, the Central government should not be a mere helpless observer but armed with the necessary authority to deal with it.

How an emergency can be imposed?

The Indian Constitution gives the President of the India, the authority to declare three types of emergencies: National Emergency, State Emergency and Financial Emergency.

What are the three types of emergency as per the constitution?

The Constitution of India provides for three kinds of emergencies i.e. Proclamation of Emergency under Article 352, Failure of Constitutional machinery in states under Article 356, and Financial emergency under Article 360.

What is a national emergency?

If the president is satisfied that there exists a grave situation, wherein the security of the country is threatened on the grounds of wars, external aggression or armed rebellion, he can proclaim emergency to that effect. Emergency can be declared over the complete territory of India or any part thereof. President can declare emergency only on the written advice of the cabinet.

How a national emergency is declared?

A special majority is required to approve an emergency resolution. Once approved, emergency shall operate for a maximum period of not more than six months.

What is a state emergency?

State Emergency can be declared during a situation or imminent threat of a widespread or severe damage, injury or loss of life or property, resulting from a natural or man-made cause.

How a state emergency is declared?

The duration of the state emergency will from the date on which the emergency is proclaimed to 2 months. The parliament (Rajya Sabha + Lok sabha) assents to the same with a simple majority i.e. a Total memberships 50%. The period of emergency can be extended to 6 months and if parliament doesn’t approve this than the emergency will be over within 2 months. State emergency can exists for maximum up to 3 years but in every 6 months it has to take an approval from the Parliament. It can be revoked at any time by the president.

What is a Financial Emergency?

If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened, he may by a Proclamation make a declaration to that effect. This emergency is never imposed in India.

Constitutional organs

What do you mean by constitutional organ?

There are three distinct activities in the Government through which the will of the people are expressed. The legislative organ of the state makes laws, the executive forces them and the judiciary applies them to the specific cases arising out of the breach of law.

How does the constitutional organs affect any citizen?

The Constitution of India defines a certain separation of the three organs of India. The separation of powers means the distribution of the Government’s political, administrative and judicial duties. It minimises the risk of unconstitutional government excesses since the implementation, compliance and execution of laws is needed to be sanctioned by all the three branches.

Importance of these constitutional organs?

A Parliamentary structure with an inflexible division of powers is unsustainable for a democratic politics and complex population such as India. However, the institutional partnership of the three government institutions is feasible with judicial and such cooperation bridges the legislative, executive and judicial divide that makes Government operate smoothly without concentration of power in one hand.

What is a legislative organ?

• As per Article 79 of the Constitution of India, the Council of Parliament of the Union consists of the President and two Houses, which are known as the Council of States (Rajya Sabha) and the House of People (Lok Sabha).
• The President has the power to summon either House of the Parliament or to dissolve the Lok Sabha. Each House has to meet within 6 months of its previous sitting. The fundamental functions of the Legislature include overseeing of administration, passing of budget, ventilation of public grievances and discussing various subjects like development plans, international relations and national policies.
• The Parliament is also vested with powers to impeach the President, remove judges of the Supreme Court and High Courts, the Chief Election Commissioner, and the Comptroller and Auditor General in accordance with the procedure laid down in the Constitution of India.

What is an executive organ?

• Areas such as, defence, railways, maritime, interstate trade, airways, banking, etc., are under the jurisdiction of the Centre (Union List) and areas such as public order, police, agriculture, etc., fall under the jurisdiction of the States (State list).
• Concurrent List covers areas such as criminal law and procedure, economic and social planning, trusts, bankruptcy, etc., over which both the Centre and the States have powers, though in case of conflict between the two, the Centre’s position prevails.
• The President serves as the Executive Head of the State and the Supreme Commander-in-Chief of the armed forces and appoints the Prime Minister, Cabinet Ministers, Governors of States and Union Territories, Judges of the Supreme Court and High Courts, Ambassadors and other diplomatic representatives.

What is judicial organ?

• The Judiciary of India is an independent body and is separate from the Executive and Legislative organs of the Indian Government. The Judiciary in India provides the people of the nation the necessary “auxiliary precaution” required to ensure that the Government functions in favour of the people, for their amelioration and for the betterment of society.
• The Supreme Court and High Court can declare a law as unconstitutional or ultra vires if it contravenes any provisions of the Constitution.

Distribution of powers

What are the powers of the constitution?

The Constitution grants the national government several different kinds of powers and prohibits it from taking certain actions. The Constitution outlines four major types of power: enumerated, implied, inherent, and prohibited.

How the powers of the constitution are divided?

The Indian Constitution, based on the principle of federalism, has a scheme of two fold distribution of legislative powers-with respect to territory; and with respect to subject matter. The constitutional provisions are spread out over Articles 245–254. Article 245 talks about distribution of legislative power between Union and State with respect to territory. In case of conflict between a central law and a state law on a subject in concurrent list; the union law should prevail.

Why the powers have been divided?

The Constitution of India embraces the idea of separation of powers in an implied manner. Despite there being no express provision recognizing the doctrine of separation of powers in its absolute form, the Constitution does make the provisions for a reasonable separation of functions and powers between the three organs of Government so that all the powers are not concentrated in one hand.

How a citizen’s rights are affected by the power of the constitution?

The powers of the constitution ensures that the principal foundation of all rights and liberties and guarantees are equally protected by the laws of the country. The prime objective is achieved by securing justice, liberty, and equality to all citizens and promote fraternity to maintain unity and integrity of the nation

Constitutional Remedies

What is a constitutional remedy?

Constitutional remedies are remedies/solutions for violations of constitutional rights, at first indistinguishable from more general legal remedies. It gives an insight into the five types of writs, which may be granted by the Courts under Articles 32 and 226 of the Constitution of India. By approaching courts through writ petitions, an individual can ensure that the constitutional rights are protected and basic rights for living and welfare of an individual is protected.

What are fundamental rights?

Fundamental rights are a collection of rights that have been documented by the Supreme Court as requiring a high degree of protection from government for encroachment. The Constitution guarantees six fundamental rights to Indian citizens as follows: (i) right to equality, (ii) right to freedom, (iii) right against exploitation, (iv) right to freedom of religion, (v) cultural and educational rights, and (vi) right to constitutional remedies.

What is a violation of fundamental rights?

A violation of rights occurs when a State fails in its obligations to guarantee that they are enjoyed without discrimination or in its obligation to respect, protect and fulfil them. When any of our rights are violated we can seek remedy through courts. If it is a Fundamental Right we can directly approach the Supreme Court or the High Court of a state.

What are the constitutional remedies available for the citizens in India?

To fructify the fundamental rights into actual liberties, a detailed legal provision was incorporated in the constitution itself to safeguard these rights. Accordingly this jurisdiction may be exercised by the Supreme Court under Article 32 of the Constitution and by the High Court under Article 32 of the Constitution and by the High Court under Articles 226 and 227 of the Constitution. Article 32 can be used only to get a remedy for fundamental rights enshrined in Article 12-35.

How the violation of constitutional right is prevented or secured?

An individual can file a Writ Petition, which is an order by a higher court to a lower court or courts directing them to act or stop them from doing an activity.

What is a WRIT?

It is a legal document in writing, addressed to the officer of the law, as the commencement of a suit/trial or other proceeding or as incidental to its progress, and requiring the performance of a specified act, or giving authority and commission to have it done. For the names and description of various particular writs.

What are the various writs available to an individual?

There are five types of Writs- Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo- Warranto.

What is Writ of Habeas Corpus?

• The principle on which Habeas Corpus function is that a person illegally detained in confinement without legal proceedings is entitled to seek the remedy of habeas corpus. An application for habeas corpus can be made by any person on the behalf of the prisoner/detenu as well as the prisoner himself.
• The writ is not applicable where the person who is detained or against whom the writ is issued is not within the jurisdiction of the Court, where it if filed to release a person who has been imprisoned by a Court for a criminal charge and where interference is observed with a proceeding for contempt by a Court of record or by Parliament.

What is Writ of Mandamus: The petitioner in this case has to prove that he has a right to enforce public duty in his favour. The mandamus is “neither a writ of course nor a writ of right but that it will be granted if the duty is in nature of public duty and it especially affects the right of an individual, provided there is no more appropriate remedy.”

What is a Writ of Prohibition: A writ of prohibition, also known as a ‘stay order’, is issued to a lower court or a body to stop acting beyond its powers. The basic purpose is to secure that the jurisdiction of an inferior court or tribunal is properly exercised and that it does not usurp the jurisdiction which it does not possess. Thus, writ of prohibition is available during the pendency of the proceedings and before the order is made. Prohibition is a writ of preventive nature. The principle of this is ‘Prevention is better than cure’.

What is a Writ of certiorari: The writ of certiorari issued to quash a decision after the decision is taken by a lower tribunal while prohibition is issuable before the proceedings are completed. The Purpose of the writ of certiorari is not only negative in the sense that it is used to quash an action but it contains affirmative action as well. It is preventive as well as curative in nature. The power of judicial review is not restricted where glaring injustice demands affirmative action.

What is a Writ of Quo Warranto: Quo Warranto is a writ issued by a superior court inquiring by what authority a person claims to exercise a particular right, or to hold a particular office. The individual who files a writ for Quo-warranto has to satisfy the court that the office in question is a public office and has been held by the usurper without any legal authority.

Citizenship

What is a citizenship?

Citizenship is defined in the first clause of the first section of the Fourteenth Amendment as all persons born or naturalized in India, and subject to the jurisdiction thereof, are citizens of India and the State wherein they reside. The Constitution of India provides for a single citizenship for the whole of India.

How it is defined under the constitution?

• Every person who was at the commencement of the Constitution (26 January 1950) domiciled in the territory of India, and (a) who was born in India, or (b) either of whose parents was born in India, or (c) who has been ordinarily resident in India for not less than five years, became a citizen of India. The Citizenship Act, 1955 deals with matters relating to acquisition, determination and termination of Indian citizenship after the commencement of the Constitution.

Article 5 of the constitution

During the commencement of the Indian Constitution, each person who has his or her domicile in the territory of India and:

1. who was born in the Indian territory; or
2. either of whose parents was born in the Indian territory; or
3. An individual who has been ordinarily resident in the Indian Territory for at least 5 years immediately preceding such commencement, shall be a citizen of India.

Article 6 of the constitution

• A person who has migrated to the territory of India from the territory currently enclosed in Pakistan shall be deemed to be an Indian citizen at the commencement of this Constitution If a person migrated from Pakistan to India before 19 July 1948 shall be considered as an Indian citizen if either of the person’s parents or any of his grandparents were born in India as expressed in the Government of India act, 1935 and has been living or residing since the date of migration. For people who migrated after 19 July 1948, they should be registered as a citizen of India by an officer from the Government of India but for registration, the subjected person has to be a resident in the territory of India for a minimum of six months, preceding the date of his application.

Article 7 of the constitution

• Regardless of anything in citizenship article 5 & 6, a person who has after the 1st day of March 1947, migrated from the Indian Territory now encompassing in Pakistan shall not be deemed to be a citizen of India:

Article 8 of the constitution

• Any person who or either of whose parents or grandparents were born in India as stated in the Government of India Act 1955 and who is residing ordinarily in any country outside India shall be considered to be a citizen of India. If he has registered as a Citizen of India by an Indian diplomatic or consular representative in that country on an application made by him or her in the prescribed document form to such diplomatic or consular representative, whether before or after the commencement of the Constitution.

Article 9 of the constitution

• The Constitution of India does NOT allow dual citizenship, i.e., holding Indian citizenship and citizenship of a foreign country simultaneously.

Article 10 of the constitution

• The Article 10 states that every person who is or is believed to be a citizen of India in any of the preceding provisions between articles 5-9 shall still be a citizen.

Article 11 of the constitution

• Given the already declared provisions in this part, there is nothing else that can take away the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and any other matter regarding the same.

What are the benefits of being a citizen in India?

A citizen is entitled to all the fundamental rights such as the right to life, right to equality before the law, freedom of speech and expression, non-discrimination, freedom of assembly, freedom of religion, etc. They have a right to permanently reside in India, while foreigners do not have that privilege. Citizens have a right to vote and most state welfare schemes are only meant for citizens. 

Which articles in the Constitution deal with citizenship rights?

Articles 5 to 11 deal with provisions relating to citizenship. Articles 5 to 10 deal with citizenship at the time of coming into force of the Constitution (i.e. until January 1950). Article 11 empowers the Indian Parliament to make Regulate on Citizenship by law. It was in exercise of this power that the Citizenship Act, 1955 was enacted.

What are the fundamental principles on Indian Citizenship?

India’s is a constitutional democracy which, by law and the Constitution grants people of all faiths, creeds, castes, languages and genders citizenship. All are equally and without discrimination, Indian.

Landmark cases on constitutional law that re-established citizen’s basic rights

What are some of the landmark judgements that changed the interpretation of the judiciary and widened scope of the constitution?

• In the case of Bijoe Emmanuel vs. State of Kerala, on refusing to sing the National Anthem in the school, three children of the Jehovah’s Witnesses were expelled from the school. There was a circular that was issued by the Director of Instructions, Kerala which made it compulsory for the school students to sing the National Anthem. They didn’t sing the National Anthem because their religious faith didn’t permit it and it was against their religious faith. They were expelled on the ground that they violated their fundamental duties and committed an offence under the Prevention of Insult to National Honours Act, 1971. The Supreme Court reversed this decision of the High Court because they did not commit any offence and also they committed no crime under the Prevention of Insult to National Honours Act, 1971 although they did not sing the National Anthem but they stood out of respect. [FUNDAMENTAL DUTIES]

• In M.C.Mehta vs. Union of India, the Supreme Court held that it is compulsory for all the educational institute to organise a teaching lesson of at least one hour a week on the protection and improvement of the natural environment and it is the duty of the Central Government under Article 51A (g) to introduce this in all the educational institute. The Central Government should also distribute books free of cost on the same subject in all the institutes and also raise consciousness amongst people towards clean environment. The government should organise ‘keep the city clean’ week at least once in a year. [FUNDAMENTAL DUTIES]

• In the case of AIIMS Students Union vs, AIIMS, the Supreme Court held that the fundamental duties are equally important like the fundamental rights so the Court strike down the institutional reservation of 33% in AIIMS which is also coupled with 50% reservation discipline-wise which was violative of Article 14 of the Indian Constitution. The court also said that just because they are duties they cannot be overlooked. They have the same importance which the fundamental rights hold. [FUNDAMENTAL DUTIES]

• The court in the case of Dr. Dasarathi vs. State of Andhra Pradesh, held that under Article 51(j) every citizen must abide by its duty to always strive towards excellence in all spheres of life and also for the collective activity so that the nation constantly rises to a higher level of endeavour and achievements. For this, the State can provide ways to achieve excellence according to the methods which are permitted by our Indian Constitution. [DIRECTIVES PRINCIPLES OF STATE POLICY]

• In Rudul Sah v. State of Bihar added a new dimension to judicial activism and raised a set of vital questions, such as, liability of State to compensate for unlawful detention, feasibility of claiming compensation from the State under Article 32 for wrongful deprivation of fundamental rights, propriety of the Supreme Court passing an order for compensation on a habeas corpus petition for enforcing the right to personal liberty. [WRIT OF HABEAS CORPUS]

• In Sunil Batra v. Delhi Administration., a convict had written a letter to one of the Judges of the Supreme Court alleging inhuman torture to a fellow convict. The late justice Krishna Iyer treated this letter as a petition of habeas corpus and passed appropriate orders. [WRIT OF HABEAS CORPUS]

• In Kanu Sanyal v. District Magistrate, while enunciating the real scope of writ of habeas corpus, the Supreme Court opined that while dealing with a petition for writ of habeas corpus,the court may examine the legality of the detention without requiring the person detained to be produced before it. [WRIT OF HABEAS CORPUS]

• In Nilabati Behera v. State of Orissa, the Orissa police took away the son of the petitioner for the purposes of interrogation & he could not be traced. During the pendency of the petition, his dead body was found on railway track. The petitioner was awarded compensation of Rs.1, 50,000. [WRIT OF HABEAS CORPUS]
• Implication in Emergency: In the Landmark case of ADM Jabalpur v. Shivakant Shukla which is also known as the Habeas Corpus case, it was held that the writ of Habeas Corpus cannot be suspended even during the emergency (Article 359). [WRIT OF HABEAS CORPUS]
• In the case of East India Commercial Co. Ltd v. Collector of Customs a writ of prohibition was passed directing an inferior Tribunal prohibiting it from continuing with the proceeding on the ground that the proceeding is without or in excess of jurisdiction or in contradiction with the laws of the land, statutes or otherwise. [WRIT OF PROHIBITION]
• A highly notable case which introduced the concept of “basic structure” of the constitution of India and declared that those points decided as basic structure could not be amended by the Parliament. The case was triggered by the 42nd Amendment Act. [FRAMEWORK OF THE CONSTITUTION]
• Indira Gandhi v Raj Narain: In this landmark case regarding election disputes, the primary issue was the validity of clause 4 of the 39th Amendment Act. The Supreme Court held clause 4 as unconstitutional and void on the ground that it was outright denial of the right to equality enshrined in Article 14. [FUNDAMENTAL RIGHTS DURING EMERGENCY]

• MC Mehta v Union of India – 1986: A PIL filed by MC Mehta in 1986 enlarged the scope and ambit of Article 21 and Article 32 to include the right to healthy and pollution-free environment. [SCOPE OF FUNDAMENTAL RIGHTS]

• Power of President’s Rule curtailed in SR Bommai v Union of India: Persecution of state governments stalled. This landmark case had major implications on Center-State relations. Post this case the Supreme Court clearly detailed the limitations within which Article 356 has to function. [ARTICLE 356]

• Vishaka v State of Rajasthan: In this case Vishakha and other women groups filed a Public Interest Litigation (PIL) against State of Rajasthan and Union of India to enforce fundamental rights for working women under Articles 14, 19 and 21 of the Constitution. This resulted in the introduction of Vishaka Guidelines. The judgment of August 1997 also provided basic definitions of sexual harassment at the workplace and provided guidelines to deal with it. Hence the importance of the case as a landmark judgment. [FUNDAMENTAL RIGHTS in relation to sexual harassment at workplace]

• Section 377 case (Naz Foundation v Govt of NCT of Delhi) – In 2009 the Supreme Court declared Section 377 of the Indian Penal Code, 1860 as unconstitutional. The said section earlier criminalised sexual activities “against the order of nature” which included homosexual acts. This judgment however, was overturned by the Supreme in December, 2013. [FUNDAMENTAL RIGHTS]

• NOTA Judgment – 2013: In 2013, the Supreme Court introduced negative voting as an option for the country’s electorate. According to this judgment an individual would have the option of not voting for any candidate (None-Of-The-Above) if they don’t find any of the candidates worthy. [FUNDAMENTAL RIGHTS]

• Patent troubles of Pharma company Novartis (Novartis v Union of India & Others) – 2013 : Novartis’ application which covered a beta crystalline form of imatinib, a medicine the company brands as “Glivec”, which is very effective against chronic myeloid leukaemia (a common form of cancer) was denied patent protection by the Intellectual Property Appellate Board. The Supreme Court in its ruling upheld the board’s decision which eventually led to the medicine being made available to the general public at a much lower cost. [FUNDAMENTAL RIGHTS]

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